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Cat Fight Over Smelly Cat Litter Continues

By Tiffany Blofield on June 24, 2011
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Church & Dwight Co., Inc. (“C&D”) the maker of Arm & Hammer® Super Scoop®has sued the Clorox Company (“Clorox”), the other leading seller of cat litter in the United States, for false advertising under the Lanham Act and various state law claims. 

This cat fight initially involved Clorox advertisements that depicted multiple cats shunning and refusing to use a litter box with Super Scoop®. As a person who is allergic to cats, I had not seen (or at least not paid attention to) the advertisements then at issue. C&D asserted that these advertisements were demonstrably false and contradicted by C&D’s independently conducted research. In addition, C&D contended that the Clorox study that it believed was substantiation for the advertisements was severely flawed. First, the Clorox study used eight cats at the same time (I am breaking out in hives just thinking about it). C&D contended that inter-cat behavior can impact a particular cat’s use of the litter box. Such behavior does not relate to rejection or preference of a particular type of cat litter. Not surprisingly, C&D contended that a typical household does not have eight cats. Second, C&D contended that there was a smelly waste problem. The aggregated waste does not account for different cats producing different amounts of waste. (I am glad I was not involved in this study.)

The case was initially dismissed in February of this year when Clorox pulled the challenged advertisements. However, C&D re-filed the lawsuit in March to address a new advertisement that Clorox was running. C&D contended that the new advertisement was “falsely touting the alleged cat waste odor elimination superiority of Clorox’s Fresh Step cat litters.” These allegedly false claims “upped the ante” by being made against the entire line of Arm & Hammer® cat litter products. The showpiece of the new commercial according to C&D is “an eye-catching demonstrative that compares the ostensible performance of the two cat litters.” C&D commissioned an independent lab to conduct a sensory study disproving the allegations and depictions in the commercial.

Last week, United States District Court Judge Jed Rakoff of the Southern District of New York experienced this cat fight first hand. He heard expert testimony from each side regarding a Clorox test—“the jar test” involving trained panelists rating the smell of jars with cat waste and ingredients from each cat litter product. (I am glad I did not participate in this study either.)

Because advertising costs a lot of money and is so important, it is not surprising that many companies take to the courts for protection from alleged false and misleading advertising by competitors. Is anyone aware of other advertising disputes related to the furry felines or other trusty pets?

Photo of Tiffany Blofield Tiffany Blofield

View my professional biography

Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay…

View my professional biography

Although my initial career path was to be one of the Supremes (not the musically talented ones with platform shoes and sequins, but rather, the nine wearing sensible shoes and pressed black robes in DC), I will likely stay in Minnesota as I have never lived anywhere else (though I have traveled across many borders, including the pond, and various state lines).

My calling to the courtroom, led me to earn my law degree from the University of Minnesota, after receiving my undergraduate degree in Economics and Psychology from St. Olaf College. After law school, I quickly realized that I’m more at ease in the courtroom than in my own living room, so I became a litigator. Over the years, I have developed my own style of litigating (I’m trying to trademark it) and aggressively represent my clients whether I am protecting valuable intellectual property or tackling the interests of professional athletes. Although I am not as wacky or as flaky as Ally McBeal, litigation still holds its “entertainment value” after fifteen years in the profession. This year’s Valentine’s Day festivities are evidence (pun intended) of my passion — instead of celebrating the typical Valentine’s Day with dinner and roses, our litigation team celebrated the seventh anniversary of the then largest jury verdict in Minnesota. The verdict came after a nine year battle and, as a result, V-Day has now become known as “Verdict Day.” I’m hoping to rename more holidays soon.

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  • Posted in:
    Intellectual Property
  • Blog:
    DuetsBlog
  • Organization:
    Winthrop & Weinstine, P.A.
  • Article: View Original Source

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